WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part III of the Child and Family Services Act and is subject to one or more of subsections 48(7), 45(8) and 45(9) of the Act. These subsections and subsection 85(3) of the Child and Family Services Act, which deals with the consequences of failure to comply, read as follows:

45.— (7) Order excluding media representatives or prohibiting publication.

The court may make an order,

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing,

where the court is of the opinion that publication of the report would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding.

(8) Prohibition: identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

(9) Idem: order re adult.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

85.— (3) Idem.

A person who contravenes subsection 45(8) or 76(11) (publication of identifying information) or an order prohibiting publication made under clause 45(7)(c) or subsection 45(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: April 14, 2015

Court File No.: Toronto CFO 14 11742-B1

Between:

Children's Aid Society of Toronto, Applicant,

— AND —

M.R., Respondent.

Before: Justice E. B. Murray

Reasons for Decision released on: April 14, 2015

Counsel:

• Ms. Danielle Szandtner — counsel for the applicant society
• Mr. Ken J. Berger — counsel for the respondent(s)

Decision

MURRAY, E. B. J.:

Background

[1] A. ("A.") R. is 15 years of age. A.R. has seldom attended school in the past three years. He and his mother, Mrs. R. ("Mother"), say this is because of his serious medical problems and the school board's failure to accommodate those problems. The Society thinks that the Board has offered reasonable accommodation, and that Mother is acting in a way that is injurious to A.R.'s mental and emotional health in not sending him to school.

[2] The Society began a protection application in June 2014, asking for a finding that A.R. is a child in need of protection pursuant to s. 37(2) (f.1) and (g.1) of the Act, and an order for the Society supervision, with A.R. to remain in Mother's care. The grounds alleged require evidence that:

1. A.R. has suffered or is likely to suffer emotional harm, demonstrated by serious:

   • (i) anxiety,
   • (ii) depression,
   • (iii) withdrawal,
   • (iv) self-destructive or aggressive behaviour, or
   • (v) delayed development

2. and that Mother neglects or refuses to provide "services or treatment to remedy or alleviate" the harm or to prevent the harm.

[3] The application asked for the following supervisory conditions if a finding was made:

1. Ms. R. will permit the Society worker to make announced and unannounced visits to the home.
2. Ms. R. will permit the Society worker to meet privately with A.R.
3. Ms. R. will participate in a meeting coordinated by Dr. Shouldice at the SCAN clinic to develop a plan to meet A.R.'s educational and medical needs.
4. Ms. R. will consent to A.R.'s participation in a psychological and psycho-educational assessment and follow through with professional recommendations.
5. Ms. R. will sign consents for the release of information to the Society as requested by the Society worker.

[4] Mother and A.R. have resisted Society involvement in the family since the beginning of the case. Mother's Answer denies that the child is in need of protection and asks for a dismissal of the application. Mother says that she is doing her best to obtain appropriate medical care and education for A.R., and that there is nothing in her actions (or failure to act) that put the child at risk of harm.

[5] At the time the Society commenced its application, it brought a motion asking for a temporary supervision order with a number of conditions, including conditions that Mother consent to A.R.'s participation in psychological and psycho-educational assessments and that she follow any resulting professional recommendations. Mother filed no material on the motion. She indicated through counsel that while she welcomed the suggested psycho-educational and psychological assessment, she opposed any order requiring her to follow the recommendation made in those assessments. A temporary without prejudice supervision order placing A.R. with Mother was made on June 20, 2014, subject to the following terms:

1. Ms. R. will meet with the Society worker at pre-arranged times.
2. Ms. R. will participate in a meeting coordinated by Dr. Shouldice at the SCAN clinic to develop a plan to meet A.R.'s educational and medical needs.
3. Ms. R. will consent to A.R.'s participation in a psychological and psycho-educational assessment.
4. Ms. R. will sign consent for the release of assessment reports as requested by the Society worker.

[6] Since the beginning of the case, Mother has cooperated in meeting with the Society workers (outside the home at her request). A.R. has declined to speak with the Society workers privately. Mother and A.R. cooperated in a consultation with staff from the SCAN program at the Hospital for Sick Children in August 2014. In October 2014 a Toronto District School Board (TDSB) psychologist did a psycho-educational assessment of A.R., with Mother and A.R.'s cooperation.

[7] No finding has been made and the Society has not taken steps to bring the case on for trial.

This Motion

[8] The Society now asks that the temporary supervision order be varied to provide as follows:

• Mother shall consent to a release of information from the child's family doctor to the Society;
• A.R. shall attend a special education program at E.Y.C.I. daily, and Mother will insure that he attend. Although A.R.'s attendance can be graduated, it is expected that he will attend for a full day every day within one month.

[9] Mother opposes the motion. A.R. also voiced his opposition to the order sought. Mother filed no material in response. Her lawyer advised that she has commenced a motion in Superior Court seeking a dismissal of the Society's action on the grounds that the Charter rights of herself and the child are violated by the Society's action.

The Law

[10] Section 51 of the Act sets out provisions for the custody of children pending adjournments, and allows the court to impose "reasonable terms and conditions" on the parent or other person given temporary custody.

Adjournments

51.--(1) The court shall not adjourn a hearing for more than thirty days,

• (a) unless all the parties present and the person who will be caring for the child during the adjournment consent; or
• (b) if the court is aware that a party who is not present at the hearing objects to the longer adjournment.

Custody during adjournment

(2) Where a hearing is adjourned, the court shall make a temporary order for care and custody providing that the child,

• (a) remain in or be returned to the care and custody of the person who had charge of the child immediately before intervention under this Part;
• (b) remain in or be returned to the care and custody of the person referred to in clause (a), subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate;
• (c) be placed in the care and custody of a person other than the person referred to in clause (a), with the consent of that other person, subject to the society's supervision and on such reasonable terms and conditions as the court considers appropriate; or
• (d) remain or be placed in the care and custody of the society, but not be placed in,
  • (i) a place of secure custody as defined in Part IV (Youth Justice), or
  • (ii) a place of open temporary detention as defined in that Part that has not been designated as a place of safety.

Criteria

(3) The court shall not make an order under clause (2) (c) or (d) unless the court is satisfied that there are reasonable grounds to believe that there is a risk that the child is likely to suffer harm and that the child cannot be protected adequately by an order under clause (2) (a) or (b).

Placement with relative, etc.

(3.1) Before making a temporary order for care and custody under clause (2) (d), the court shall consider whether it is in the child's best interests to make an order under clause (2) (c) to place the child in the care and custody of a person who is a relative of the child or a member of the child's extended family or community.

Terms and conditions in order

(3.2) A temporary order for care and custody of a child under clause (2) (b) or (c) may impose,

• (a) reasonable terms and conditions relating to the child's care and supervision;
• (b) reasonable terms and conditions on the child's parent, the person who will have care and custody of the child under the order, the child and any other person, other than a foster parent, who is putting forward a plan or who would participate in a plan for care and custody of or access to the child; and
• (c) reasonable terms and conditions on the society that will supervise the placement, but shall not require the society to provide financial assistance or to purchase any goods or services.

Application of s. 62

(4) Where the court makes an order under clause (2) (d), section 62 (parental consents) applies with necessary modifications.

Access

(5) An order made under clause (2) (c) or (d) may contain provisions regarding any person's right of access to the child on such terms and conditions as the court considers appropriate.

Power to vary

(6) The court may at any time vary or terminate an order made under subsection (2).

Evidence on adjournments

(7) For the purpose of this section, the court may admit and act on evidence that the court considers credible and trustworthy in the circumstances.

[11] A society is not required to prove that a child is "in need of protection" before a temporary order is made under s. 51. A temporary supervisory order with conditions may be imposed if the Society establishes that there are reasonable grounds to believe that the child faces a risk of likely harm of the type identified in s. 37(2) if the supervisory order with those conditions is not imposed. Conditions imposed should be related to the risk specific to the case and should be proportionate. The principle that the court's order should be the least intrusive possible that is consistent with adequate protection of the child applies when a court is determining what terms of supervision are appropriate pending an adjournment.

[12] As Justice Stanley Sherr observed, although the onus which an agency faces at this stage is not great the court must be cautious in issuing supervisory orders, which are an intrusion into the lives of families by the state. These orders create obligations that can subject caregivers to contempt remedies if terms are breached, or expose them to the risk of losing care of a child due to an alleged breach.

[13] S. 51(6) of the Act provides that a court may vary a temporary order, including a temporary supervision order, but sets out no test for a variation. The caselaw deals primarily with motions to change temporary custody pending trial, but the principles from those cases have relevance to motions to change the terms of a temporary supervision order.

• The threshold question is whether there has been a material change in circumstances since the prior order was made.
• To warrant a change in the order, the change of circumstances must be related to the risk of harm faced by the child.
• If a material change is established, the court will consider a number of factors, including the significance of the alleged increase in risk, in relation to the likely time of trial; whether the order requested is proportionate to the change in circumstances; and the child's best interests.

The Evidence

[14] All evidence considered on the motion was presented by the Society. That evidence includes reports from the SCAN team at HSC and from the TDSB psycho-educational assessment of A.R. The evidence is summarized below.

1. A.R. has been absent from school most of the time since he began Grade 7. In Grade 7 he was absent 133 days, and in Grade 8 he was absent 167 days. It is not clear from the evidence whether A.R. has attended any days of school in Grade 9, which he was scheduled to begin at E.Y.C.I. in September 2014.

2. A.R. began to have problems attending school regularly in Grade 6, when he missed 51.5 days.

3. Mother attributes A.R.'s attendance problems to serious health problems which started when he was in Grade 6. Mother and A.R. report that the child suffers from urgent, frequent, and painful urination, vomiting and diarrhea on a chronic basis.

4. This condition causes A.R. to get little rest at night. Mother and A.R. report that most—about 75%—of his nights, A.R. is up most of the night, having to urinate every 15-20 minutes. A.R. is then fatigued during the days. He has tried sleep aids, such as melatonin, without effect.

5. Mother and A.R. report that when urination is painful, which is often, A.R. screams.

6. A.R. reports that this condition has caused him to be embarrassed and bullied at school. The child told the SCAN team that when he attempted to go to school last year that other students were cruel to him in the bathroom, and that those students were not disciplined by the school.

7. Mother takes A.R. regularly to the family doctor, Dr. Irina Lam, and A.R. is under the care of a nephrologist and urologist. He takes medication prescribed by these doctors to try to alleviate his symptoms, and follows recommended exercises and dietary rules. Mother has also taken the child to other specialists.

8. At various times, Dr. Lam has provided reports to the Board indicating that A.R. should not attend school for health reasons for certain periods of time.

9. A.R. told the SCAN team that he missed going to school, and he particularly regretted that he was now unable to participate in sports. He also missed his friends, although he said that he was able to keep in touch with them by Facebook.

10. Society workers say that Mother told them that A.R. is "3 years behind" academically. In her Answer, Mother denies this statement.

11. Mother believes that the best way to deal with A.R.'s health problems and educate him is through home schooling. A.R. shares this belief. There is no evidence that Mother is actually home schooling the child.

12. Mother has applied to the Board for leave to home school A.R. Her application has been rejected, as she did not submit a curriculum.

13. The SCAN team reports that Mother and A.R. appear to understand the secondary benefits of school attendance (e.g., socialization), but are both committed to a plan for home schooling.

14. The SCAN team considered and rejected a theory that A.R. was a case of Munchausen's syndrome by proxy. The team was of the view that Mother sincerely believes that A.R. is ill, and that A.R. is of the same opinion.

15. After a review of A.R.'s medical records, the SCAN team reported that they could find no medical explanation for A.R.'s symptoms. In the team's opinion, there was no medical reason why A.R. should not return to school. They made a number of recommendations, which include the following:

    1. A pediatrician be secured to manage A.R.'s health needs. Mother has consulted a pediatrician.

    2. A.R. continue with his exercises, increase his water intake, and continue to follow recommendations from his doctors.

    3. A.R. gradually return to school, with the school providing the accommodation necessary to meet his health and learning needs. That accommodation would include an individualized education plan, 1-to-1 assistance, individual help from an education assistant, time outside the regular class for special education, and modified programming.

    4. A.R. should have a comprehensive psychological assessment to deal with psycho-educational and emotional issues. The team referred Mother to Hincks-Dellcrest for this assessment.

    5. The Society should assist the family in dealing with the school and obtaining psychological services.

16. The TDSB psychologist reported as follows:

    1. A.R. and Mother cooperated in the assessment.

    2. An extended period was required to complete the assessment; A.R. had to attend six 2-hour sessions for the testing and interviews. The assessment was conducted in a quiet room with access to a private bathroom which allowed A.R. to take frequent bathroom breaks.

    3. A.R. told the interviewer on several occasions during the testing that he was tired because he had been up (in and out of the bathroom) most of the night before. The assessor observed that the child was fatigued.

    4. A.R. has average cognitive functioning, but his academic performance does not match his cognitive potential.

    5. Specifically, A.R. shows strong reasoning and reading skills, but is "weak" in math and writing skills.

    6. A.R. has a learning disability. Specifically, he has weaknesses in processing speed, fine motor control, and visual memory.

    7. A.R.'s learning disability as well as his absenteeism contributes to his academic underachievement. In explaining this view, the assessor noted that A.R.'s difficulties in math and writing pre-dated his illness and absenteeism.

    8. The psychologist made recommendations about learning strategies that would be helpful for teachers to employ with A.R., but did not make specific recommendations as to, for example, whether 1-to-1 work was needed.

17. The TDSB, after assessing A.R. at an individual placement and review committee, offered him a spot at E.Y.C.I. in a classroom with a 1:5 ratio, with 10 students and two teachers trained in special education. The classroom has a bathroom nearby. At times, A.R. would occasionally be able to get 1-to-1 attention (when one of the teachers is dealing with the rest of the students in a group).

18. More recently, the TDSB advised that A.R. could be in a classroom with 5 students and one teacher.

19. Mother and A.R. have advised the Board that they believe A.R. could attempt a return to school if he could receive instruction on a 1-to-1 basis. Otherwise, they feel that home schooling is in his best interests.

20. The TDSB last year charged Mother and A.R. under the Education Act because of A.R.'s truancy. Recently the Board has decided to move the matter on to trial. The trial date has not been set.

Analysis

[15] I begin by considering the risk of harm which the Society alleges A.R. is subject to.

[16] There is no evidence that A.R. suffers or is at likely risk of suffering emotional harm demonstrated by serious "anxiety, depression, withdrawal, or self-destructive or aggressive behavior". The Society submits, however, that the fact that A.R. is behind in his academic achievement establishes that there are reasonable grounds to believe that A.R. suffers from serious "delayed development", or at least a risk of serious delayed development.

[17] "Delayed development" is not defined in the Act. I was referred to only one case in which the term was considered, Durham Children's Aid Society v. B.P., (2007) O.J. 4183 (S.C.). That case involved children whose parents refused to send them to school; the parents were facing both prosecution under the Education Act for the children's truancy and a child protection proceeding based on the children's failure to attend school regularly. The parents argued that while previous legislation (the Child Welfare Act) had provided that a child's habitual absence from school was a ground for a protection finding, that the removal of this provision in the 1984 Child and Family Services Act meant that a failure to insure that the children attend school was not in itself a protection ground. They said that the children's absence from school was properly dealt with only under the Education Act. The Society brought a summary judgment motion on a question of law, asking that the court find that "neglect of education" was an available protection ground. Justice Shaughnessy noted the allegations that the subject children were unable to read, and found that neglect of education could constitute a case of "serious delayed development" under the Act.

[18] The evidence before me does not establish the degree or the cause of A.R.'s academic delay. The TDSB assessment suggests that part of the cause is A.R.'s learning disability; common sense tells me that the lack of educational instruction for the past three years must be a contributing cause. I accept that it is possible that A.R.'s delay might ultimately be characterized as a "serious" case of "delayed development" and that Mother's refusal to send him to school could be the basis for a protection finding in these circumstances.

[19] I also accept that there has been a change of circumstances related to the risk of harm faced by A.R. since the first temporary supervision order made in June 2014. Since that time, the medical team at SCAN has opined that there is no medical reason why A.R. cannot return to school, and has recommended that he do so. Mother and A.R. continue to refuse, unless 1-on-1 instruction is made available.

[20] Despite this, I decline to make the order sought by the Society for the following reasons:

1. Proportionality: The new condition of supervision requested—that A.R. attend school full time—is not proportionate to any increase in risk. The Society's protection concern has not changed since the beginning of the case: it alleges that A.R. is or will suffer serious delayed development because Mother refuses to send him to school. There is no evidence that this risk has increased, or of any emergency requiring immediate action to protect A.R. from harm. There is no evidence, if the requested condition is not imposed prior to a trial, that A.R. will suffer damage now that cannot be dealt with by later remedial action.

2. Intrusion and Untested Evidence: The new condition requested is very intrusive to the family, and is based on untested opinion evidence. The relief sought in the motion is essentially the same relief sought by the Society in its application—that Mother follow the recommendation of professionals whom the Society finds reliable, in this case, the SCAN team. Mother and A.R. oppose this intrusion on the family's autonomy.

   The SCAN team have not been cross-examined about the basis for their opinion. In addition, the placement offered by the TDSB does not appear to include all the supports recommended by SCAN to accommodate A.R.'s needs; for example, the Board's plan makes no provision for an educational assistant to support the child.

   No protection finding has been made, and the basis for such a finding is hotly contested.

3. Potential Emotional Harm: The evidence gives me concern about emotional damage to A.R. if he is forced to attend school at this time. A.R. described to SCAN the pain caused him from the treatment he received from unkind fellow students because of his health problems. A.R.'s distress at the prospect of the court forcing him to attend school was obvious during the argument of this motion—he sat in court with his head in his hands. I have no psychological assessment of A.R. which could be helpful in understanding the problems A.R. may have in interacting with other students and how those problems might be dealt with.

[21] For these reasons, I am dismissing the Society's motion to compel A.R.'s school attendance at this time. I am ordering that Mother consent to the ongoing release of information from the child's family doctor, Dr. I.L.

Released on: April 14, 2015

Signed: Justice E. B. Murray

Footnotes

[1] I appointed a lawyer for A.R. on June 20, 2014, despite his statement that he did not wish a lawyer and that Mother's lawyer spoke for him. A.R. refused to instruct the lawyer, and at her request I terminated the appointment on January 7, 2015.

[2] C.A.S. of Toronto v. T.J.M., 2010 ONCJ 701.

[3] Windsor-Essex C.A.S. v. Sarah B., 2007 ONCJ 288, 2007 O.J. 2700 (O.C.J.)

[4] Children's Aid Society of Hamilton v. C.J., 2015 ONSC 1203

[5] C.A.S. of Toronto v. T.J.M., supra

[6] Children's Aid Society v. E.L., (2003) O.J. 3281 (S.C.); Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55; Children's Aid Society of Simcoe (County) v. B. (B.J.), 2005 ONSC 33293

[7] Children's Aid Society of Toronto v. K.D., supra

[8] In cases in which it is not argued that the child should come into or remain in Society care

[9] Children's Aid Society v. E.L., (2003) O.J. 3281 (S.C.); Children's Aid Society of Toronto v. K.D., 2011 ONCJ 55; Children's Aid Society of Simcoe (County) v. B. (B.J.), 2005 ONSC 33293

[10] The case does not set out the children's ages.